Monthly Archives: March 2016

Campaign Finance and American Democracy

athenian democracy

The Federal Election Campaign Act of 1971, or FECA, was established with the express purpose of protecting the sanctity of American Democracy through careful regulation. Requiring and regulating the disclosure of campaign donations at the federal level and detailing the legal limits of campaign contributions served as the basis of a body of campaign finance law intended to protect the equality of influence of the individual American over the political system against the power of wealthy individuals and corporate groups. The FECA has since been challenged and weakened through a series of legal cases dealing with its relationship to the First Amendment and the nature of campaign contributions as a kind of political speech. The relationship between sensible campaign finance law and the freedom of speech of individuals donating to federal campaigns is a long and complex one. In terms of its practical application, the FECA has been largely neutered by the alteration of a variety of its provisions as a result of the cases surrounding it. In order to restore the power of the FECA to function effectively as the cornerstone of US campaign finance law, these altered provisions must be returned to their original state or altered in some way, allowing them to better function as limits on campaign spending.


The arguments which have been put forward in disarming parts of the FECA have been primarily based in an appeal to the First Amendment right to freedom of speech. The implication here is that campaign donations act as a variety of political speech by donors, and are therefore protected by the Constitution. Because the Constitution protects “the rights of ‘life,’ ‘liberty,’ ‘property,’ and ‘equal protection’” for persons, (Clements, 70) the Constitutional question hinges on two important factors, the nature of the “personhood” of donors and whether the kind of influence campaign contributions can have represents a substantial detriment to the public good. The question of personhood deals with the rights of corporations to contribute fund in the same manner as individuals; and more importantly, the issue of harm to the public good draws into question the entire Constitutional argument of campaign contributions as protected speech. If, for example, the courts were to interpret the dangers of the influence of money in politics as sufficient to warrant a prudent legislative response, such donations would no longer be considered constitutionally protected, rather they would be a regulated variety of finance. The complexity of interpretation here has made the FECA an important part of the history of Supreme Court rulings in the 20th and 21st centuries. Both of these factors have been dealt with by the Supreme Court in relation to this issue, but it remains clear that the rulings handed down have weakened the FECA and fundamentally changed the structure of American campaign finance, as well as the electoral system by extension. A reexamination and alteration of the FECA and the rulings which have contributed to its current structure is essential to strengthening US campaign finance law.


Some of the most important alterations to the FECA must surround the limits placed on campaign contributions. Originally, these limits were introduced as part of the 1974 amendment to the FECA, but they have been heavily altered recently, allowing for a much greater degree of flexibility in the volume of money being donated to campaigns by individuals. Supreme Court cases like McCutcheon v. Federal Election Commission have effectively removed the capacity for the Commission to act on the FECA’s provisions about limiting the number of contributions made by individuals. (Clements, 126) In this case, while the limitations on spending directly to candidates and committees remain the same, limits on total spending on the campaigns of all federal candidates have been lifted. By eliminating these limits, the Court has allowed individuals to contribute an unlimited total amount of money toward the election of federal candidates. The result of this change is an unnecessary expansion of the ability of individual donors to influence elections outside their own states. Overturning McCutcheon v. FEC would restore a certain standard limitation to this kind of spending, and it would restrict the spending of individuals to primarily the campaigns within their states. Individual donations, under a system structured in this way, would primarily serve to support the work of campaigns limited to certain areas of local interest, preventing wealthy donors from attempting to influence elections in a wide number of distant states. In order to make these kinds of localized contributions effective, overturning McCutcheon v FEC, which would limit total spending by individuals on federal campaigns, would have to be paired with a tightening of the limits on the total spending by the campaigns themselves.


The FECA currently allows for unlimited spending by campaigns on activities to increase voter turnout and spread the message of parties and candidates nationally. This is a part of the later Supreme Court case Buckley v. Valeo, which challenged the Constitutionality of contribution and expenditure limits found in certain 1974 provisions of the act. The court eventually upheld contribution limits, but expenditure limits were overturned as restrictions of the quality of campaign speech. (FEC) The issue with this provision, as it stands in light of Buckley v. Valeo, is that it incentivizes massive spending by campaigns, and it indirectly promotes the kind of large-scale “money-races” and “money-elections” which can be seen in modern elections by making a large budget an essential component of a successful campaign. Altering the FECA to limit all spending by individual campaigns would allow campaigns to focus their spending on targeted work, and it would equalize the field of competition in terms of the availability of money. Campaigns would, under these conditions, be forced to compete equally on the issues rather than campaign for money from other interests.


Further, cases like Citizens United v. Federal Election Commission have fundamentally changed the way corporations are viewed in terms of their personhood and their ability to participate in campaign contributions. In this decision, the Supreme Court upheld the right of nonprofit corporations, like Citizens United, and individuals to unlimited political expenditures, but this decision also extended that right to labor unions and for-profit corporations. In terms of the Constitution, this case deals with the question of the nature of personhood as regards corporations. The question of what constitutes legal personhood is important in regards to the legal rights of corporate entities to contribute to campaigns nationally. Corporate legal personhood, a principle dating back to the 19th century, has been used to claim Constitutional protection of corporate speech, and by extension, donations. While the concept of this personhood is relatively old, the way it was upheld in the Citizens United decision represents a shift in that understanding and a strengthening of the value of corporate personhood in the 21st century. The relationship between corporations as “persons” and the Constitution has been strengthened by making individual people and corporate “persons” equal before the First Amendment.


Overturning Citizens United is essential to any kind of reform of the FECA. This alteration is not only practically important, in the sense that it will give the FEC greater power in regulating total political expenditures and the influence of corporations in politics, but also legally important because of the precedent set by the Citizens United decision. This decision establishes the relative equality of corporate legal personhood and the personhood of individuals. Whereas corporations previously acted as bodies of individuals acting with a single will, “persons,” now they are viewed in a similar light as individuals with full Constitutional rights and protections. By establishing this role for corporations, the court has fundamentally reshaped the way future legal decisions must view corporations and corporate money. This decision affects the way large corporate interests can interact with the political world, but it also affects all other cases in which those interests appeal to the first amendment for their protection. Beyond the world of campaign finance, this decision has the capacity to change legal interpretation surrounding advertising, financial and other regulation, and any other federal relationship with corporations. Giving corporations this level of personhood actually undermines the ability of individuals to govern themselves by subordinating the political power of the individual to that of larger groups and corporations. Justice Stevens’ dissent in the Citizens United decision pressed this point and argued for a distinction between human-beings and “persons” which would allow for federal regulation of corporations regardless of the First Amendment. (Clements, 14) Stevens saw the decision, and the resulting influx of corporate money into politics, as threats to an already imperfect American democracy. According to this thinking, making corporations “people” gives them a kind of power which they were previously denied outright, the power to shoot down federal regulation using the First Amendment.


The result of previous decades of challenges and alterations to the FECA has been its weakening, and with it a weakened system of campaign finance law. Beyond the restoration of previously removed portions of the act and the overturning of important decisions surrounding it, certain provisions could be added to strengthen the campaign finance system moving forward. The power of Super-PACs in light of Citizens United is huge, and they must be regulated and controlled in a more effective way. These organizations allow large donations of money which effectively go directly to campaigns. In this sense, the presence of Super-PACs totally negates any other limits on total campaign contributions by creating a method for donating unlimited amounts of funds. The volume of funding coming into campaigns through this method has the added effect of making it nearly impossible to stage a grassroots resistance to corporate power. Democracy with Super-PACs is effectively controlled by corporate interests with very little potential federal oversight or popular resistance. Categorizing Super-PACs as a separate kind of organization under the FECA, a kind which can be regulated by the FEC, would make it feasible to place contribution limits directly on the Super-PACs themselves. This alteration could be one way of undoing some of the damage of Citizens United by providing substantial regulations for Super-PACs and equalizing corporate donors and extremely wealthy donors with the donations of small, individual citizens.


The danger of a weakened FEC and campaign finance system is that American democracy will be weakened along with it. The capacity for corporations and wealthy donors to influence the outcome of elections totally reshapes the way our democracy functions by placing final decision-making power in the hands of a relatively small number of Americans. Functional democracy requires broad participation in order to prevent a decay into a plutocratic oligarchy. Fundamental changes must be made to both the FECA and to the broader legal decisions surrounding it. With these changes, the FEC will be able to more effectively regulate the behavior of campaigns, major donors, and corporations as they relate to American electoral politics. In total, the freedom of speech and Constitutional rights of individuals can be effectively maintained while also reasonably limiting the spending of federal campaigns and the power of corporations and large interests to control the outcome of major elections.


Works Cited
Clements, Jeffrey. Corporations Are Not People. Berrett Koehler, 2014. Print.
Federal Election Commission. “The Federal Election Campaign Laws: A Short History.” FEC. N.d. Web.
Foltz, Philipp. The Age of Pericles. 1853. Image.
McChesney, Robert. Dollarocracy. Nation Books, 2013. Print.
Schweizer, Peter. Extortion. HMH, 2013. Print.

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